When Andy Cilek went to his local polling place in Hennepin County, Minnesota, to vote, an election worker told him to cover or take off his T-shirt, which bore both the Tea Party logo and the message “Don’t Tread on Me.” Cilek, the worker said, would have to do the same for his “Please I.D. Me” button, often worn by opponents of voter fraud. The authority for the worker’s request was a Minnesota law that bans political badges, buttons and other “insignia” at polling places on election days. Cilek and the Minnesota Voters Alliance, a group that he helped to start, filed a lawsuit challenging the state’s ban on “political” apparel as a violation of the First Amendment. Minnesota counters that the law is simply intended to maintain an “orderly and controlled environment” at the polls, and some justices appeared to agree with that. But other justices seemed to strongly support the challengers, while the rest didn’t clearly tip their hand.

Several common and related concerns emerged among the justices who seemed inclined to strike down the law. The first was whether there is actually any need for the law – or, put another way, whether allowing “political” apparel will really be disruptive at the polls. Justice Samuel Alito, perhaps the challengers’ strongest supporter, asked attorney David Breemer, who represents Cilek and the MVA, to describe what has happened in the approximately 40 states that do not have similar laws. Are there brawls in polling places, Alito queried?

Justice Neil Gorsuch asked Daniel Rogan, the assistant county attorney who defended the law, a similar question. Gorsuch suggested that Minnesota’s law is an outlier. Is there any documented need, he asked, for the law to go so far? What is the state’s compelling interest in barring so many kinds of apparel?

Justice Stephen Breyer appeared more convinced that the state has a compelling reason for the law. Breyer told Breemer that the state is simply trying to carve out somewhere for voters to have a moment for thought and reflection before they cast a ballot.

Chief Justice John Roberts at one point echoed this sentiment, telling Breemer that apparel can convey fairly strong messages – the proverbial “a picture is worth a thousand words.” Couldn’t the state decide, he asked, that it wants the polling places to be a peaceful and quiet respite from a long and bitter campaign?

But Justice Elena Kagan was skeptical. There are clearly some places, she told Rogan, where we don’t want anyone wearing buttons with political messages – for example, a courtroom. But why is a polling place, which she described as the culmination of a “rowdy political process,” such a place?

Roberts seemed more sympathetic to the challengers on another point – the possibility that the Minnesota law goes too far, banning apparel that will not have any tangible effect on decorum (or voters) at the polls. Do you really think, he asked Rogan, that a very small pin bearing a campaign logo is going to affect the atmosphere in the polling place?

Rogan responded that such a pin would indeed have a negative effect, including by possibly intimidating voters who don’t share the views of the person wearing the pin.

Roberts pushed back, telling Rogan that he didn’t understand where any disruption or harm to decorum at the polling place would come from. When they go to vote, Roberts stressed, people don’t really believe that they will be protected from learning what others think.

Justice Sonia Sotomayor saw things differently, however. She noted that Cilek was wearing a “Please I.D. Me” button when he went to the polls. That message, she emphasized, is a highly charged political one, intended to influence other voters to leave the polls.

Alito was also deeply worried about the prospect that the Minnesota law would serve as an “invitation for arbitrary enforcement,” with election officials selected by political parties making the final determination about whether a voter’s apparel violates the law. Alito ran through a long laundry list of possible slogans, names and images – ranging from a rainbow flag to the NRA and various constitutional amendments – asking Rogan to weigh in on whether they would or would not be allowed under current law.

Rogan responded that election officials are required to make many on-the-spot decisions, including whether a particular item of apparel is “political” and therefore barred by law. The officials have to draw lines all the time, he acknowledged, and there may be hard cases, but that does not mean that the law is unreasonable, he concluded.

Rogan tried to reassure the justices that if they uphold the law, concerns about its arbitrary enforcement would be minimal. The ban on “political” apparel has been in place in Minnesota for over 100 years, he noted, without anyone challenging it until now. And even if a voter feels that the law is being unfairly enforced, he continued, the penalties are hardly onerous: The voter is asked to cover up or take off the “political” apparel, but if he refuses to do so, he can still vote; election officials may take down his name, and he may face a penalty of up to $300.

Rogan’s efforts to placate the justices, however, had the opposite effect on Roberts. If the penalties for violating the law are so weak, he told Rogan, that suggests that the state’s interest in the law might not be especially strong. After all, Roberts pointed out, the process that the state uses would still allow someone to cast his vote while wearing apparel intended to intimidate other voters, with the only consequence being that the voter wearing “political” apparel would have his name recorded.

Like Roberts, Justice Anthony Kennedy was hard to read. On the one hand, he seemed to suggest that if the state’s rationale for the law is the protection of dignity and decorum at the polls, the Supreme Court should allow election officials to make case-by-case decisions about particular pieces of apparel when the question arises on Election Day. And he also asked Breemer why the state should allow speech in the polling place at all. But on the other hand, he told Rogan that the process of resolving a dispute over whether the law barred a voter from wearing a specific item of clothing might be more disruptive than the clothing itself.

By the end of an hour of oral argument, it was hard to call the decision for one side or the other. As a general rule, the justices are often fairly protective of free speech – even when it is speech with which they may strongly disagree. The combination of that protectiveness and the difficulty of drawing a line between apparel that is or is not “political” may bode well for the challengers in the long run, but we likely will not know for sure for several months.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.